Author Archives: dscoale

Minerals not conveyed

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“The issue we decide in [ConocoPhillips Co. v. Ramirez] is whether a devise of ‘all . . . right, title and interest in and to Ranch “Las Piedras”‘ refers only to a surface estate by that name as understood by the testatrix and beneficiaries at the time the will was made or also includes the mineral estate. We conclude that only the surface estate was devised,” noting that the term “Las Piedras” is in quotes and the relevant conveyances show that the term was understood to have a distinct and particular meaning. No. 17-0822 (Tex. Jan. 24, 2020).

Derivative DQ?

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“We announce no categorical rule governing dual representation in derivative litigation. Whether a company and the individual defendants are ‘opposing parties’ for purposes of [Texas Disciplinary] Rule 1.06(a) in derivative litigation requires consideration of the true extent of their adversity under the circumstances.” In re Murrin Bros. 1885, Ltd., No. 18-0737 (Dec. 20, 2019).

TCPA latest

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Speech: “Given the ‘in the marketplace’ modifier, the TCPA’s reference to ‘a good, product, or service’ does not swallow up every contract dispute arising from a communication about the contract. By referring to communications made in connection with goods, products, or services ‘in the marketplace,’ the definition confirms that the right of free speech involves communications connected to ‘a matter of public concern.'” Therefore. “[a] private contract dispute affecting only the fortunes of the private parties involved is simply not a ‘matter of public concern’ under any tenable understanding of those words” in the TCPA.

Petition: “The filings by the Ranch in this lawsuit and in the administrative proceeding before the Railroad Commission were an exercise of the right to petition as defined by the TCPA. The Operator’s counterclaim premised on those filings is therefore based on, related to, or in response to the Ranch’s exercise of the right to petition.” Creative Oil & Gas LLC v. Lona Hills Ranch LLC, No. 18-0656 (Dec. 20, 2019).

No Hughes tolling

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“Long after a corporate officer incurred personal liability for transferring corporate assets in violation of a federal statute, he sued the lawyer who purportedly ‘blessed’ the transactions without warning him about the collateral consequences.” Limitations on the officer’s legal-malpractice claim against that lawyer was time-barred because Hughes tolling was not available: “[T]he legal advice Erikson provided—approving Marine’s transfer of assets to creditors—was, at best, incidental to and tangentially related to the ongoing . . . litigation.” Erikson v. Renda, No. 18-0486 (Dec. 20, 2019) (emphasis added).

No briefing waiver from minor record citation errors

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In Horton v. Stovall, the Court reversed and remanded in a summary-judgment case, finding that the court of appeals should have alerted the appellant and given her an opportunity to cure when these record-citation errors occurred:

1. “Horton correctly identified the documents she was relying on to support her appellate issues and those documents were actually offered in opposition to Stovall’s summary judgment motions, but the appendix instead cited to those same documents where they were attached to Horton’s motion for continuance and motion for new trial. Right documents, wrong record citations.”

2. “Horton also admittedly failed to provide pinpoint citations to three emails Stovall had relied on to support her attorney’s fee claim. Horton’s brief argued that the emails were insufficient to meet the presentment requirement, but she cited to the first page of the motion to which they were attached rather than to the specific emails.”

Good faith?

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Janvey v. GMAG, LLC, a TUFTA case in which the creditor sought the “clawback” of a transfer from a third-party transferee, presented a frustrating pair of jury answers. On the one hand, the jury found a lack of good faith because the transferee had inquiry notice about the fraudulent nature of the transfer:

(The charge went on to define actual and inquiry notice.) On the other hand, the jury found that further investigation, based on the facts known to the transferee, would have been futile:

Answering a certified question from the Fifth Circuit about how to reconcile these findings, the Texas Supreme Court held: “A transferee on inquiry notice of fraud cannot shield itself from TUFTA’s clawback provision without diligently investigating its initial suspicions—irrespective of whether a hypothetical investigation would reveal fraudulent conduct. To hold otherwise rewards willful ignorance and undermines the purpose of TUFTA.” No. 19-0452 (Dec. 20, 2019).

Finally, finality.

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The “Lehmann problem” – the question of when a judgment is truly final (and thus starts the appeal deadline) is a perennial challenge in Texas cases involving multiple parties and issues. The problem has drawn particular attention recently in recent months in family-law cases, where judges often prepare a letter or memo summarizing key rulings. Reversing a Dallas case that found such an instrument to be a final judgment, the Texas Supreme Court held: “[A]n order lacking the unmistakable language of finality—that it resolves all claims between and among all parties and is final and appealable—is ambiguous in a suit under the Family Code when the order does not comport with the statute governing final orders and is otherwise inconclusive as to its intent. If a judicial decree’s finality is ambiguous, a reviewing court should examine the record to determine the trial court’s intent.” In the Interest of R.R.K., No. 18-0273 (Dec. 13, 2019). The opinion also reviews the general contours of the test for judgment finality in Texas.

No jurisdiction? No-evidence MSJ

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“Because jurisdiction may be challenged on evidentiary grounds and the burden to establish jurisdiction, including waiver of a government defendant’s immunity from suit, is on the plaintiff, we see no reason to allow jurisdictional challenges via traditional motions for summary judgment but to foreclose such challenges via no-evidence motions.” Town of Shady Shores v. Swanson, No. 18-0413 (Dec. 13, 2019). The Court observed: “[W]]hen jurisdiction is intertwined with the merits, the evidence supporting jurisdiction and the merits is necessarily intertwined as well.”

Mandamus in sanctions dispute

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The Texas Supreme Court granted mandamus relief in a sanctions dispute in In re Casey, No. 18-0289 (Nov. 22, 2019), holding:

“In Braden v. Downey, we declined to consider the propriety of monetary sanctions by mandamus, holding instead that payment of monetary sanctions must be deferred until rendition of an appealable judgment if (1) the sanctioned party contends immediate payment would impair access to the courts and (2) the trial court does not promptly hold a hearing and make express written findings to the contrary. . . .

According to [real party in interest], Braden’s deferral mandate is implicated only when a sanctions award rises to the level of a penalty that impedes resolution of the case on the merits. While it is true that the monetary sanction in Braden significantly exceeded the opponent’s compensable attorney’s fees, Braden is not limited in th[at] way . . .

Braden’s focus is on the effect of a monetary sanction that must be paid before it can be
superseded and appealed, not on a specific amount or purpose of the sanction. . . . [A]n opposing party may be awarded sanctions before an appealable judgment is rendered, but neither Chapter 10 nor Rule 13 creates a right to payment before supersedeas is available. Braden concerns are implicated based on a sanction order’s requirement that the sanction be paid in advance of an appealable judgment,”

Silence – golden, but not clear.

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Silence may be golden, but it does not clearly compel the arbitration of class claims. In Robinson v. Home Owners Management Enterprises, the Texas Supreme Court held that: “(1) arbitrability of class claims is a ‘gateway’ issue for the court unless the
arbitration agreement ‘clearly and unmistakably’ expresses a contrary intent; (2) ‘[a] contract that is silent on a matter cannot speak to that matter with unmistakable clarity’; and (3) an agreement to arbitrate class claims cannot be inferred from silence or ambiguity—an express contractual basis is required.” No. 18-0504 (Nov. 22, 2019) (footnotes omitted).